Additional remedy for RTI applicants under the Consumer Protection Act

15 Nov, 2012

ADDITIONAL REMEDY FOR RTI APPLICANTS UNDER THE CONSUMER PROTECTION ACT

It has been reported that the Registrar of Karnataka State Consumer Dispute Redressal Commission (KSCDRC), Bangalore, has sent a circular to all the District Forums in the state not to entertain any complaints against the Public Information Officers (PIOs) under the Right to Information (RTI) Act. It has allegedly been done on the request of the Karnataka Information Commissioner (KIC), Bangalore. Kindly see the link for details - http://www.rtifoundationofindia.com/rti-applicant-%E2%80%98consumer%E2%80%99-too-consumer-protection-a-2338

This action has once again brought to the fore the issue whether a citizen can seek remedy under the Consumer Protection Act (CPA), 1986 for any deficiency in services provided under the Right to Information Act. In this regard, we bring to you an article in two parts about the use of Consumer Protection Act for the applications filed under the Right to Information (RTI) Act, 2005.

PART –I

Activists have claimed that in the information Commission, requests for grant of compensation are rarely attended to while the consumer protections forums are more amenable to such requests under CPA. When a citizen files an application under the Right to Information (RTI) Act, 2005 with any public authority, he pays a fee of Rs. 10/- [or any other prescribed amount] for seeking the desired information. It has been argued that by making the payment for availing services, the RTI applicant becomes a ‘consumer’ too as defined under CPA and can claim ‘compensation’ for any ‘deficiency in services’.

Legal Definitions

It is important to know certain terms to understand the basis of use of the CPA in cases of delay or malafide denial of information under the RTI Act.

‘Service’ is defined under section 2(1)(o) of CPA, 1986 as –

“service”means service of any description which is made avail­able to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

For use of services, the term ‘consumer’ is defined u/s 2(d)(ii) of CPA, 1986 as

“consumer” means any person who “ hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;

The term "deficiency" is defined u/s 2(g) of CPA 1986 which reads -

“deficiency”means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

As per section 23 of the RTI Act, “No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act”.

Section 3 of CPA, 1986 provides that “Act not in derogation of any other law - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”.

Interpretation of the legal terms

It is important to understand whether the citizen who is filing an application under the RTI Act can be considered as a consumer. If yes, can the failure to furnish information under RTI be considered as ‘deficiency in service’ for which a citizen can approach a Consumer forum.

The case of Dr. S.P. Thirumala Rao, a consulting physician, is relevant and answers most of the questions and doubts. A telephone service provider had dug up the foot path in front of his clinic but had failed to restore it after completion of the work. The physician was very annoyed by the shoddy work and filed an RTI application with the Mysore City Municipal Corporation seeking information about the telephone service provider. The Public information Officer (PIO) at the Corporation did not furnish the information on time citing heavy workload. The applicant approached the Consumer Forum for deficiency in service and the Forum gave the decision in the favour of the applicant and awarded damages of Rs. 500/- and cost of Rs. 100/- to the Corporation. The National Commission also upheld the District Forum’s judgment.

When a citizen seeks information through an application under the RTI Act and pays the prescribed fee, he becomes a ‘consumer’ as per the CPA who has sought certain ‘service’.

By seeking compensation under the Consumer Protection Act (CPA) 1986, there is no breach of the section 23 of RTI Act which bars the jurisdiction of courts as is only an additional remedy and does not mean to challenge the order of the Information Commission.

The CPA can be used only when a fee has been paid, conversely, in case of a Below poverty line (BPL) applicant, this remedy would not be available.

Many District Consumer Dispute Redressal Forums (DCDRF), State Dispute Redressal Commissions (SCDRC) and the National Consumer Dispute Redressal Commission (NCDRC) have ruled that the Information Seekers under the RTI Act are also consumers under the CPA, 1986. These redressal forums have ordered the public authorities:

To grant of compensation to applicants of RTI Act, and

To make up the deficiency in service by providing the information and getting the deficiency removed.

Guntur (A.P.) District Consumer Forum directed to provide the information and granted compensation. When the PIO and FAA did not comply with its orders, the district forum issued warrants to arrest these two state government officers.

A landmark order of National Consumer Dispute Redressal Commission

The footpath in front of the clinic of a physician was dug up for laying telephone cables through PVC pipes. As it was not restored after completion of the work, he was upset as the damaged footpath and the projecting pipe was nuisance to his patients as well as to pedestrians. He filed two RTI applications with the Mysore City Municipal Corporation asking about the telephone service provider who was responsible for leaving the work incomplete.

When the required information was not furnished within the prescribed time period, he filed a complaint before the District Consumer Forum wherein he claimed compensation and costs from the Mysore City Municipal Corporation. The Municipal Corporation informed that the work was carried out by Reliance and the Government of India through the Department of Telecommunications. It was claimed that the information could not be furnished within the prescribed period due to heavy workload and further, the corporation could not be held responsible for the lapse of the telephone company. The corporation challenged the jurisdiction of the District Consumer Forum.

The District Consumer Forum awarded token damages of Rs 500 and costs of Rs 100 while holding that:

The RTI Act bars the jurisdiction of the Courts, but not the Consumer fora as the CPA is meant to be an additional remedy.

A complaint filed to claim compensation for deficiency in service for failure would be maintainable under the CPA as the RTI Act does not deal with compensation for deficiency in service.

The Municipal Corporation challenged the order of the District Consumer Forum before the Karnataka State Commission where it was argued that the proper remedy would have been to approach the appellate authority, and not the consumer forum in case of failure to provide the reply under the RTI Act. The Karnataka State Commission allowed the appeal. The matter reached before the National Consumer Dispute Redressal Commission (NCDRC) through a revision petition. In its judgment the NCDRC observed that:

The RTI Act did not bar the jurisdiction of the consumer fora.

Even if a particular law barred the jurisdiction of courts, a complaint could still be filed under the provisions of the CPA as it provided additional remedy.

The provision for appeal under the RTI Act was restricted to the failure to furnish the information sought, but there was no provision to claim compensation for deficiency in service.

As the applicant has to pay a fee for getting information, he acquires the status of a consumer and hence in case of any deficiency in service in respect of providing such information, a complaint can be filed under the CPA for claiming compensation.

The National Commission set aside the order of the State Commission and restored that of the District Forum. [Judgment dated 28.05.2009 in Dr S P Thirumala Rao v. s Municipal Commissioner, Mysore City Municipal Corporation].

The mute question is whether the provisions of CPA can be reasonably extended in case of the first appeal since the first appeal is an extension of RTI application. More importantly, whether the CPA can also be invoked against Information Commissions where no fees are to be paid for second appeal/ complaint and there is no prescribed time frame for disposal. It does not appear to have been tested against these organisations so far and hence the view the courts are like to take on such matters would be known only in the times to come.

PART - II

The second part of the article deals with the procedure for filing a complaint and the formats for the same.

How to prepare and submit a complaint to a consumer forum?

A consumer must give a notice in writing to the service provider asking him to rectify the faults, defects, etc. The notice should be simple, clearly pointing out your grievances, and requesting the supplier or service provider to rectify the faults, defects, etc. or replace the goods. Normally, you should give a clear one month’s notice. If there is more than one address of the noticee, you should address the notice to the nearest address available, so that if you have to file a Complaint, it will be in the nearest consumer forum.

The Complaint must be filed within 2 years of the cause of action. If there are reasonable causes for delay in filing the Complaint, you can always request the Consumer Forum to condone the delay.

The following is the procedure for filing a Complaint before the District Forums. (State Forums and National Forums have their own rules, but they are essentially the same)

Although it is not essential that the Complaint should be typed, it is always better to get it typed, double spaced, with at least 1½ inches of margin space on the left, top and bottom.

1 Original and 2 photo copies are required to be submitted. In addition, if the Complaint is admitted, copies for the opposite parties /parties has to be submitted.

The Complaint has to be arranged in the following Order and the page number of all the documents should be given.

Index giving the page number(s) of each document.

Application for condonation of delay (if there is delay), giving the reasons for the delay, duly affirmed before a notary public.

Complaint – containing details of the grievance, preferably arranged in chronological order; briefly giving the ground on which relief is claimed, and the relief (including legal costs, damages and interest) claimed. The Complaint has to be signed by the Complainant.

Appearance -You can appear before the Consumer Forums in person, or allow a close relative to appear for you.

Authorisation - But if you are engaging an advocate to appear on your behalf, you have to enclose a Vakalatnama, But then, your advocate will be doing all the paper work and attending the hearings. If you are authorizing, your close relative to appear for you, you have to enclose a letter of authority.

Affidavit that the contents of the Complaint are true.

Enclosures – Attach Copies of all documents on which you rely upon in support of your Complaint.

Where to file the complaint:

The jurisdiction of the Consumer Forum depends on the amount involved.

Upto Rs. 20 lakhs District Consumer Forum

Rs. 20 lakhs to Rs. 1 crore State Consumer Commission

More than Rs. 1 crore National Consumer Commission

Fee payment:

The fee to be paid is nominal and depends upon the amount involved. It is as follows:

Before District Forum:

For claims up to Rs. 1 lakh = Rs. 100/-

For claims from Rs.1 lakh to Rs. 5 lakhs = Rs. 200/-

For claims from Rs.5 lakh to Rs. 10 lakhs = Rs. 400/-

For claims from Rs.10 lakh to Rs. 20 lakhs = Rs. 500/-

Before State Commission:

For claims from Rs.20 lakh to Rs. 50 lakhs = Rs. 2000/-

For claims from Rs.50 lakh to Rs. 1 Crore = Rs. 4000/-

Before National Commission

For claims exceeding Rs. 1 Crore = Rs. 5000/-

The fee has to be paid in the form of a demand draft on a nationalized bank in favour of the President of the concerned District Consumer Forum (Registrar of the State or National Commission if the Complaint is filed in these places).

There is no prescribed format for the affidavit. A simple format is given below which can be modified for use.

Specimen Draft Affidavit to be filed with the Complaint

I,………….. the complainant above named, do hereby solemnly affirm and state that I have filed the complaint herein and repeat, reiterate, reaffirm and confirm each and every statement made therein as true to the best of my knowledge and belief.

Affirmation

In practice, you can get the affirmation done (or affidavit affirmed) before any notary public, but he will usually charge anything between Rs. 100 to Rs. 200; or you can affirm before the Registrar of the concerned Forum (PLEASE CHECK THIS) .

Actual filing of the complaint

The Complainant, or his advocate, shall have to personally file the Complaint in the office of the concerned Consumer Forum.

The Consumer Forum’s office will go through the Complaint and point out deficiencies, if any, which have to be corrected and re-submitted.

The Consumer Forum’s office will give a short date for admission.

On this date, the complainant or his representative has to appear and to explain that there is a genuine consumer Complaint.

Once the Complaint is admitted, The Consumer Forum directs the complainant to submit more copies of the complaint (as many as there are respondents). These will be sent to the Respondents along with notice prepared by the Commission’s office.

Notice under Consumer Protection Act for not appropriately responding to an application under the RTI Act, 2005

To,

Head of the Public Authority

xxxxxx

Sir,

Subject: Notice under the Consumer Protection Act, 1986

I had sought certain information under the Right to Information Act, 2005 from the Public Information Officer (PIO) of your public authority vide an application dated ……………. and had duly paid the application fee of Rs. …. (mention mode of payment like DD/ Postal order etc. giving the number) in favour of the …….. My application under section …. of the RTI Act and the application fee was duly received by the PIO on ……… and as per the section of the RTI Act, the PIO was bound to provide the information within 30 days of the receipt of the application as per 7(1)
Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:
Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:
Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:
Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:
of RTI Act 2005. (copy of the RTI application, reply from PIO, first appeal and proof of its delivery /post enclosed as annexure ‘…’)

As per the Consumer Protection Act 1986, when I had sought information through an application under the RTI Act and paid the prescribed fee, I am covered by the definition of the ‘consumer’ who has sought certain ‘service’. This view is supported by the decisions of the National Consumer Disputes Redressal Commission (NCDRC) in the following cases:

to initiate departmental action against erring officers of your public authority for not observing the law and dereliction of duties.

I may humbly add that as the Head of public authority, it is your legal and moral duty to deal with such cases of violation of laws strictly failing which it would tantamount to abetment in the violation of rules on your part.

This notice, the proposed complaint and any other action which might be taken in the context above would be exclusively at your risk, cost, and responsibility.

As per the Consumer Protection Act 1986, when I had sought information through an application under the RTI Act and paid the prescribed fee, I am covered by the definition of the ‘consumer’ who has sought certain ‘service’. In this regard, it is submitted as under:

Complainant availed "Service" to get "information" as define under section 2(1)(o) of CPA 1986 as “service” means service of any description which is made avail­able to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

But the same has not been provided properly by the PIO as per rule / provision of law.

Complainant have paid fee of Rs.10/- under a rule (RTI) to get information, hence I am a Consumer as define u/s 2(d)(ii) of CPA 1986 that - "consumer" means any person who “ hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;

PIO has not provide me requested information against my request dated dd-mm-yyyy and also not within a period of 30 days u/s 7(1)
Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:
Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:
Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:
Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:
of RTI Act 2005, which to be deemed as "Deficiency in Service" as defined u/s 2(g) of CPA 1986 which to be read as - “deficiency”means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

Hon'ble National Consumer Disputes Redressal Commission New Delhi has decided in revision petition No. 1975 [in appeal No. 244 / 04 relating to complaint of Dr. S.P Thirumala Rao versus Municipal Corporation, Mysore] on 28-05-2009 that - applicant under RTI Act is a consumer and that non submission of information by public authority amounts to deficiency in service under The Consumer Protection Act 1986. (Photocopy of NCDRC judgement dated 28-5-2009 is enclosed).

[A] In Feb.2011 District Consumer Forum Thoothukudi (Tamilnadu) has award Compensation of Rs. 20000/- to RTI Applicant for "deficient service" by PIO.

[B] In December 2010, Additional District Consumer Forum Nagpur has ordered compensation of Rs. 1000/- with cost of Rs.300/- to RTI Applicant for "deficient service" by PIO. In April-2009, District Consumer Forum Karnal has accepted complaint of RTI Applicant and issued notice to SPIO, Haryana Staff Selection Commission.

[C] In July-2010, District Consumer Forum Meerut has admitted complaint from RTI Applicant and issued notice to PIO for non supply of information under RTI.

Section 3 of Consumer Protection Act (CPA) 1986 provides that — "Act is not in derogation of any other law", means CPA provides additional remedy in addition to the remedies provided under any other Acts and it is not in derogation of any provisions of law for the time being in force. On the question of additional remedy, reliance was placed on Fair Air Engineers Pvt. Ltd. & Anr. Vs. N.K. Modi — III (1996) CPJ 1 (SC) and Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. — AIR 2000 SC 2008 in which it was held that despite the existence of an arbitration clause, the complaint by a consumer under CF Act, 1986 was tenable since the remedy provided under the CF Act is in addition to the provisions of law for the time being in force. Reliance was also placed on the judgment of Lucknow Development Authority Vs. M.K. Gupta — (1994) 1 SCC 243 and it was urged that revision be allowed and compensation ordered by the District Forum be maintained.

Section 23 of RTI Act 2005 bars the jurisdiction of courts, but not the consumer fora, as the Consumer Protection Act (CPA) 1986 is meant to be an additional remedy in addition to the provisions of law for the time being in force.

I am not challenging any orders issued under RTI Act, as it bars u/s 23 of RTI Act, but my application is for Compensation due to "Deficiency in Service".

Central Information Commission (CIC), New Delhi in order No. CIC/OK/A/2006/00432 Dated 16th November 2006 in case of Sh. Sharat Chandra Agarwal Vs Ministry of Railway examined the issue of the malfunctioning of the A.C units in the Railway coaches. The Commission felt that as for the issue of compensation, the Consumer Forum was the more appropriate agency.

Format of consumer complaint before the national / state / district consumer disputes redressal commission / forum at (city)

COMLAINT UNDER CONSUMER PROTECTION ACT 1986

IN THE MATTER OF:

NAME AND ADDRESS OF COMLAINANT: COMPLAINANT

VERSUS

NAME AND ADDRESS OF ACCUSED: OPPOSITE PARTY (RESPONDENT)

Introduction:

A brief paragraph of the complaint explaining the name, residence address and the occupation of the complainant.

A brief paragraph about name, address and occupation of the opposite party.

Respectfully showeth:

1. Description of the deal, services promised by the opposite parties for the value paid by the complainant

2. Description of the advertisements given by the opposite parties which attracted the complainant to purchase the commodity and services.

Transaction:

Details of the price of goods and services

Details of the bill / invoice ( bill number and date, item and amount)

Details of the payment made by complainant ( cheques number / cash etc.)

Nature of complaint:

(Select from list or write as required)

Misleading advertisement and false representation

Cheating by giving false promises

Deficiency in after sales service or not abiding by warranty clause

Harassment by the opposite party

Not delivering the goods and services for which the payment is made

Charging excess amount

Any other factor that affected the consumer

Other evidences of support of complaint:

Copy of advertisement and catalogue that promised the concerned goods and services.

Copy of letters sent to the opposite party to request for rectification of fault and settlement of grievance.

Jurisdiction:

(Select one)

As the total amount involved is more than Rupees 1 Crore, the complaint is being filled with Hon’ble National Consumer Dispute Redressal Commission.

OR

As the total amount involved is more than Rupees 20 Lakhs and less than 1 Crore, the complaint is being filled with Hon’ble State Consumer Dispute Redressal Commission.

OR

As the total amount involved is less than Rupees 20 Lakhs, the complaint is being filled with Hon’ble District Consumer Dispute Redressal Commission.

Prayer:

The complainant therefore prays:

Relief be granted to the complainant as demanded herein

That such order be passed as the Hon’ble Consumer Forum may deem fit in the circumstances of the case.

That the accused should be punished severely so that so that culprits of similar kind would be afraid to indulge in such criminal activities.

Mention any other statement of prayer you wish to state

PLACE: SIGNATURE:

DATED NAME OF THE COMPLAINANT:

VERIFICATION

I, name of complainant, resident of (residential address) hereby declare that I have not misrepresented any facts nor have I tried to hide any information in my above complaint. All the facts mentioned herein are true to the best of my knowledge.

Name & signature of the complainant

Please note: The affidavit should be notarized before further copies of complaint sets are made for submission

Arrangement of the complaint papers:

All papers to be paper filed in following order:

1. Complaint

2. Affidavit

3. List of documents

4. Documents

5. Vakalatnama

6. Application for injunction (if any).

7. Application for condonation of delay (if any).

Page numbers to be written on lower right corner.

Deposit the complaint at the consumer court along with appropriate court fee.

From the editor: We were planning for an article in respect of the synergy between the RTI Act and the Consumer Protection Act when a similar article was received from Mr. Surendera M. Bhanot. His contribution in the article is hereby acknowledged, specially the Part II which is largely based on material sent by him. Mr. Surendera M. Bhanot is an activist and has been associated with many organisations. He can be reached at surenderabhanot1952@gmail.com